The above captioned appeals have arisen out of the order passed by Judge Family Court, Muzaffarabad on 31--12-2001, whereby Mst. Challandra Babi were of Sher Zaman is allowed Rs.500 and Hamida Babi and Safeela Babi daughters of Sher Zaman are allowed Rs.1,000 each per month as maintenance allowance with effect from first March, 2001, on the application filed by them before trial Court on 10-4-2001.
2. Sher Zaman has filed appeal against the order alleging that the Court has passed the order mechanically against the facts and evidence and without any proof of his having sufficient means to pay the maintenance while Mst. Challandra Babi challenges the order seeking past maintenance amount Rs.270,000 for the period she and her daughters remained deserted by Sher Zaman.
3. The case of Mst. Challandra Babi and others before the trial Court was that she (Challandra) was married to Sher Zaman in 1977, and gave birth to two daughters, namely Hamida Babi and Sufeela Babi. According to them they were deserted in 1981 by Sher Zaman and are living with father of Challandra Babi, who are not given any amount for their maintenance. They claimed Rs.355,500 as past maintenance and Rs.1,000 per month for each of them as recurring maintenance. Sher Zaman in his written statement alleged that they remained with him till 1986, when Challandra Babi was taken by her brothers, but he regularly paid maintenance allowance to them till one month before the application was filed by them.
4. The learned Advocate appearing for Mst. Challandra Babi and others contended that as per evidence placed on record she and her daughters were deserted by Sher Zaman in 1981, when he contracted second marriage and she was forced to live with her father alongwith the daughters.
According to him they were not paid any amount for their maintenance during this period and the trial Court was bound to allow them amount claimed as arrears of past maintenance. He further contended that under the Family Courts Act, it was duty of the Family Court to allow maintenance whether past or future and it was within exclusive jurisdiction of Family Court only, who failed in its duty to pass the decree for past maintenance.
5. The learned Advocate for Sher Zaman contended that Mst. Challandra Babi was taken away by her brother in 1986 for grabbing her land, however, he paid maintenance allowance to them through Safdar Ali, father of Mst. Challandra Babi. According to the learned Advocate the amount of past maintenance cannot be decreed by the Family Judge neither is Sher Zaman liable to pay the amount. The learned counsel further contended that decree has been passed by the Court below without framing and deciding issue as to whether Sher Zaman is able to pay the amount or not, hence the decree is without lawful authority. He contended that the Court below has drawn wrong conclusion from the evidence on record. The learned counsel relied upon 1991 CLC 766.
6. After hearing learned Advocates for the parties I have gone through evidence placed on record and the authority of law cited by the learned Advocate for Sher Zaman.
7. It is admitted between the parties that Mst. Challandra Babi was wedded to Sher Zaman who is living in the house of her father alongwith her two daughters who are unemployed and unmarried.
The evidence on record does not disclose that Sher Zaman is not able bodied person, having no strength, capacity or vigor to earn and maintain his dependents. The contention of the learned Advocate for Sher Zaman that the Court was first bound to ascertain whether he was able to maintain or not is right to the extent that only able person can pay maintenance, however, a person who is of sound mind, able bodied and capable to undergo and undertake any job, whether he is doing the job or not, shall be deemed to be able to maintain his dependents and pay for their maintenance, unless it is brought on record by him that he is not capable of earning anything on account of disease, body infirmity or any other act beyond his control. The appellant Sher Zaman has not brought on record any such fact showing that he is not able to earn for his dependents. It is held in the case reported as:- Mst. Razia Begum v. Ghulam Rasool 1972 PCr.LJ 1286 "if a man does not work or does not earn enough to support his children, that in itself is no ground to justify his omission to supply them with reasonable maintenance because having brought them forth in the world, it is his bounden duty to provide for their maintenance".
8. Daughters of Sher Zaman are also living with her mother who are equally not paid and maintained by her father. They are unmarried and unemployed. They are not able to undergo any labour and manual work like other womenfolk in our society which of course is unfortunate, but is a fact of our cultural life. The womenfolk in our society, given our social and cultural set up are deemed dependent on their father or husband, as the case may be, and the same principle applies to the unmarried daughters of Sher Zaman who are living with her mother. They are his children and he is hound to maintain them so long as they are unable to maintain themselves or their dependence shifts to their husbands. Thus, the trial Court has not committed any illegality in allowing the monthly allowance of maintenance in their favour.
9. As far the arrears of the past maintenance claimed by Challandra Babi are concerned, these are beyond the scope and powers of the Family Judge under section 20 of the Family Courts Act, 1993.
Under the Schedule attached to the Family Court Act, the Court is empowered to allow "maintenance". The word "maintenance" itself implies and connotes the allowance or expenses for current and recurring needs not the amount spent in past. If the maintenance was not claimed before the date of application, it would mean that it was not needed. Even under subsection (2) of section 488, Cr.P.C. Maintenance can be allowed from the date of order, or from the date of application for maintenance, not preceding that. The learned Advocate for Sher Zaman has rightly placed reliance upon 1991 CLC 766 in this behalf.
10. Appeal No.69 of 2002 is filed against the order dated 23-11-2002, on the application for execution of maintenance order dated 31-12-2001, and there appears no illegality in the order as the order of maintenance has to be executed unless suspended by the Appellate Court.
M.B.A./56/Sh.C(AJ&K)